The Supreme Court’s Most Impressive AchievementStephen L. Carter
June 29 (Bloomberg) -- The most fascinating aspect of the Supreme Court’s anticlimactic decision to uphold the Affordable Care Act isn’t the outcome. It’s that until the ruling was handed down, nobody outside the court knew what the outcome was going to be.
Imagine that. Smack in the middle of a city where leaks are a way of life, here was a pending action that pundits were proclaiming would determine President Barack Obama’s legacy, and the capital’s legion of political reporters was unable to ferret out the smallest advance hint of the court’s intentions -- even though the initial vote probably came three months ago. The justices themselves, their law clerks and all the personnel of the court cooperate in maintaining the veil.
In an era when we have become accustomed to a government that can’t keep its secrets, an institution whose members know how to keep their mouths shut is refreshing. The recent cascade of disclosures of national-security information from the Obama administration is both embarrassing and destructive. It is not, however, atypical. The old cliche is wrong: Washington doesn’t leak like a sieve. It leaks like a flood.
The current contretemps isn’t even the administration’s first episode of national-security leakage. Shortly before Obama decided on the Afghanistan surge, his consideration of one was leaked to the press. As analysts pointed out, the leak was almost certainly a device to pressure the White House to go ahead with the surge.
“Wires climb with secrets,” Carl Sandburg wrote in his poem “Skyscraper.” Had he been writing about Washington, he might have said instead that wires buzz with secrets -- because, for too many people who possess them, the great joy of having a secret seems to be the sharing. One reason to admire the court, even when one disagrees with it, is its ability to withstand the temptation to which other government bodies regularly yield.
Washington didn’t always leak the way it does today. During the Civil War, the New York Herald published President Abraham Lincoln’s State of the Union message before it was delivered to Congress in December 1861. Even many of Lincoln’s allies considered the leak an act of treason -- not indiscretion, not breach of trust, but treason. The leading suspect was Mary Todd Lincoln, the president’s wife, and many historians think she was the guilty party.
True, the cries against Mrs. Lincoln were concocted by the president’s political enemies, most notably powerful members of his own Republican Party. But the sense of violation of the his inner sanctum was so strong that when the Congress held hearings, Lincoln was obliged to yield up a culprit, allowing the White House groundskeeper to be accused.
For a long time, a mystique surrounded the secrets of the government, particularly on issues of national security. In the 1960s, the New York Times published a photograph of President Lyndon Johnson conferring with National Security Adviser McGeorge Bundy. “Clearly visible in Bundy’s left hand,” notes David Wise in his book “The Politics of Lying,” is “a spiral-bound document stamped TOP SECRET DINAR.” “Dinar” was a code word for a particular kind of signals intelligence.
The Johnson administration, Wise tells us, not only retrieved the photographic negative from a cooperative Times, but spent $250,000 developing a new code word and changing all documents, around the world, formerly stamped DINAR.
The cooperation may sometimes have gone too far, but it wasn’t unusual. Journalists knew about the Manhattan Project and didn’t report it. They knew about the secret negotiations to end the Cuban missile crisis, and didn’t report them. (John Scali of ABC News even became a key intermediary.)
That, of course, was another world. The Pentagon Papers and Watergate changed everything. Reporters grew more aggressive and more skilled in ferreting out secrets; newspapers became less likely to heed official requests for silence; and -- perhaps most important -- Washington itself became peopled with a new political class, more loyal to self or party than to institution.
Let’s be clear. Except in the rare case when the leaker is telling the world of some horrible scandal, leaking isn’t admirable. It’s despicable. Not every leaker is Deep Throat; not every scandal is Iran-Contra. Most of what is published from unnamed sources is either mundane or self-serving.
The ordinary leaker deserves ostracism, not applause. He lies daily to friends and colleagues, coworkers who imagine that he is safe to talk to, when in fact he is ready to betray their trust -- and the trust of his government -- often for no better reason than to flaunt his superior access to information. (I have met journalists who publish leaks describing leakers just this way, as supreme egoists.)
In my own days as a Supreme Court clerk, more than three decades ago, nobody sat us down for a lecture on discretion. We just knew. We understood that if the hushed marble corridors and chambers were illuminated by the glare of public scrutiny, it would be impossible to undertake the weeks of quiet studying, pondering and polishing that the work of the court requires.
Indeed, the preservation of the mystique helps explain why the justices steadfastly refuse to allow cameras. Law is not a visual medium, and the transformation of the hallowed halls of thoughtful debate into just another sound-bite circus could only be destructive of the tradition of contemplation that the Supreme Court still represents.
People who are serious about following oral arguments are free to read the transcripts or listen to the audio tapes. Just as nobody can watch the video, neither does the court leak. These two facts are of a piece. The Supreme Court isn’t like everything else, and doesn’t try to be.
Justice Louis Brandeis, who served from 1916 to 1939, was once asked why public respect for the Supreme Court was so high. “Because we do our own work,” he answered. Despite the several law clerks assigned to each justice and the court’s growing administrative staff, this is still essentially true.
But there is another reason, and the ability of the Supreme Court to keep its verdict on the Affordable Care Act secret for three months is a reminder of it: Not only do the justices do their own work, but they and the entire staff take their own institution seriously enough to preserve its traditions and prerogatives. The rest of Washington would do well to learn from the court’s example.
(Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama,” and his next novel, “The Impeachment of Abraham Lincoln,” will be published in July. The opinions expressed are his own.)
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